The most liberal construction, contended for by counsel for plaintiff, of the indenture of February 19, 1906, does not confer greater rights than would be acquired by proceedings t.o appropriate the land for the use of a single track viaduct such as the one already constructed; and the ultimate question therefore is whether the contemplated building of the defendant is necessary for the convenient use of his land on either side of the right-of-way, and will it unreasonably interfere with the maintenance and operation of such viaduct? C., H. & D. Ry. v. Wachter, 70 Ohio St., 113; Gibbons v. Ebding, 70 Ohio St., 298.
The necessity of the building to the convenient use of the land on both sides of the right-of-way can hardly be denied, and it seems further, from the deed of June 30, 1905, that the parties had the same in contemplation.
It does not appear from the evidence that the building will unreasonably interfere with the maintenance and operation of the viaduct, but at worst will cause some inconvenience.
The petition for an injunction will therefore be dismissed.